La sanción a las empresas matrices por prácticas infractoras de las normas de competencia de sus filialesregulación, principios y garantías

Résumé

The paper critically analyzes the European and Spanish jurisprudence regarding the liability of the parent companies for the facts attributable to their subsidiaries. He maintains that the former only uses an adulterated version of the so called «unitary concept of autor» developed in penal dogmatics. Spanish legislation, however, deviates from the European model. It regulates more restrictively a hypothesis of command responsibility, applied to legal persons, which does not allow to alter the rules of burden of proof connected with the right to presumption of innocence. Similarly, the parent Company could not be held liable for not having avoided the facts of the subsidiary, insofar as this would imply an inadequate use of the omission crimes criteria. The last part of the paper sets out criteria to determine when it is appropriate to assess joint responsibility of the parent company and the subsidiary and when the former must respond exclusively. It also rejects the possibility of joint liability as incompatible with the principle of personality of the sanctions.